Why the Mandate Is Constitutional: The Real Argument

President Barack Obama greeting Supreme Court Justices Anthony Kennedy and Ruth Bader Ginsburg before his State of the Union address, Washington, D.C., January 24, 2012

1.

The Supreme Court’s hearings in the health care case, US Department of Health and Human Services v. Florida, over a nearly unprecedented three days of oral argument in late March, generated all the attention, passion, theater, and constant media and editorial coverage of a national election or a Super Bowl. Nothing in our history has more dramatically illustrated the unique role of courtroom drama in American government and politics as well as entertainment.

The plaintiffs have asked the Court to declare the Affordable Care Act unconstitutional. The political and social stakes are enormous. But the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Analysts at first predicted a 7–2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultraconservative justices, whose questions in the oral argument have now convinced many commentators that on the contrary, in spite of text, precedent, and principle, the Court will declare the act unconstitutional in June, by a 5–4 vote. That prediction may be too swift. There is still reason to hope, as I discuss later, that Justice Anthony Kennedy, often the swing vote between liberals and ultraconservatives, will have sufficient respect for congressional authority to save the act.

The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. One in six Americans lacks any health insurance, and the uninsured of working age have a 40 percent higher risk of death than those who are privately insured. Insurance is often unavailable even for those willing and able to pay for it: according to the Government Accountability Office, an average of 19 percent of individual applications for insurance are declined for a variety of reasons including the applicant’s being on a prescription medicine or being overweight.

If the Court does declare the act unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically workable remedy—not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program. If that opinion were right, we would have to accept that our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to…

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